This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.

Thursday, May 26, 2011

Hon. Dib Waldrip, a Texas trial court judge, active student of the Confrontation Clause, and reader of this blog, has told me about a recent case that illustrates the value of having the analyst who performed a lab test testify at trial – or, put another way, a danger that will not be prevented unless Bullcoming is reversed. He has given me permission to report on it here.

The defendant was charged with possession with intent to distribute a quantity of methamphetamine of 4 grams or more but less than 200 grams. In Texas, this is a first-degree felony with a punishment range of 5 to 99 years or life and a fine up to $10,000.00.

The official lab report, signed by the analyst who performed the actual test, reflected the presence in the tested substance of methamphetamine with an aggregate weight of 4.51 grams. The analyst testified at trial. Using his personal notes to refresh his memory, he testified that the aggregate weight of the methamphetamine was 1.51 grams. The prosecutor then asked the analyst to review the lab report. After a pause the analyst testified that report was in error and that his notes reflected the correct amount. (Apparently, a clerk prepared the report from the notes of the analyst and made the error.)

Soon after, the prosecutor moved to dismiss. The judge granted the motion, with thanks to the analyst for his integrity. But it appears that earlier, before a different judge, a co-defendant had entered a plea based on the erroneous report.

Mistakes like this might not happen every day, but by now we have heard enough evidence of lab errors that we should not think that they are extraordinarily rare. It has always seemed to me that, before sending a person to prison, perhaps for many years, it is not too much to ask that a someone with personal knowledge of the facts recited in a report that is critical to conviction come to court to testify in person about it.

Friday, May 06, 2011

An interesting and very capable petition for certiorari was filed this week in Racz v. California, 2011 WL 1689305. The petition seeks review of an unpublished decision of the California Court of Appeal in a "statements from the grave" case. Racz was convicted of murdering his wife, who disappeared. Among the evidence introduced against him at trial was a series of statements made by his wife, shortly before her disappearance, to friends and family members describing him as violent and expressing fear of him.

The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.

Even assuming an affirmative answer to that question, one would have to go further to conclude that the statements here were testimonial, but I think it reasonable to conclude that they were; it appears that the wife probably made the statements fully anticipating the possibility that she would be murdered and that her statements would provide evidence against her husband.

Even assuming the statements are testimonial, in an ideal world I believe a court should consider whether the accused forfeited the confrontation right by murdering his wife. But Giles v. California appears to foreclose that possibility.